Decisions  of  Ho 
Conf  Pam  12mo  #122 


DECISIONS 


x# 


.# 


HON.  JAMES  D.  HALYBURTON, 

.lUDGK    OF   THE    CONFEDERATE    STATES    DISTRICT    COURT 
FOR   THE    EASTERN    DISTRICT    OF    VIRGINIA. 

IN   THE    CASES  OF 

JOHN  B.  im  m  JOHN  H,  LEFTWICH. 

IN   RELATION   TO  THEIR 


EXEMPTION,  AS  MAIL  CONTRACTORS.  FROM  THE  PERFORMANCE 
OF  MILITARY  SERVICE 


RICHMOND: 

RITCHIE    &    DUNNAVANT,    PRINTERS^ 
1864. 


R^. 


Ex    Parte    Lane— Habeas  Corpus. 


Th.»  return  to  the  writ  in  this  case  states  that  Lane  is  a  volunteer  in 
tihe  Provisional  Array  of  the  Confederate  States  of  America,  a  member 
of  Company  B,  of  the  18th  battalion  of  Virginia  volunteers,  and  that  he 
is  detained  for  duty  under  the  orders  of  Captain  Fallen. 

To  this  return  .the  petitioner  replies  that  he  is  a  contractor  for  the 
transportation  of  the  Confederate  States  mails,  on  Koute  No.  2521,  be- 
tween Keswick  Depot  and  Columbia,  in  the  State  of  Virginia,  and  that 
fche  route  is  thirty-one  miles  and  a  half  in  length,  and  that  he  is  exempt 
from  military  service  by  virtue  of  the  act  of  Congress  approved  on  the 
1  4th  of  April  1863,  and  entitled  "An  act  to  exempt  contractors  for  car- 
rying mails  of  the  Confederate  States,  and  the  drivers  of  post  coaches 
aod  hacks,  from  military  service ;"  which  act  is  in  these  words : 

"  The  Congress  of  the  Confederate  States  of  America  do  enact.  That 
the  contractors  for  carrying  the  mails  of  the  Confederate  States  shall  be 
oxempt  from  the  performance  of  military  duty  in  the  armies  of  the  Con  - 
federate  States  from  and  after  the  passage  of  this  act,  during  the  time 
they  are  such  contractors :  provided,  &c. 

"  Sec.  2.  That  drivers  of  post  coaches  and  hacks  for  carrying  the  mails 
m  all  routes  where  the  weight  of  the  mails  requires  that  they  should  be 
carried  in  coaches  or  hacks,  shall  be  exempt  from  military  service  in  the 
armies  of  the  Confederate  States  from  and  after  the  passage  of  this  act, 
so  long  as  they  continue  to  be  employed  as  drivers  :  provided,"  &c. 

It  is  said  by  the  counsel  for  Captain  Fallen  that  the  act  above  referred 
to  does  not  discharge  persons  who  were  in  service  at  the  time  when  the 
contract  was  made,  but  only  extends  to  those  who  had  entered  into  con- 
tracts before  their  enrolment :  that  if  Congress  had  meant  to  release  those 
who  were  already  in  service,  the  word  discharged  would  have  been  used, 
and  not  the  word  e.veynjH ;  which,  it  is  said,  is  inappropriate  in  such  a  case. 

The  word  "exempt,"  however,  is  not  a  technical  terra.  It  does  not 
bear  in  a  statute  a  different  construction  from  that  which  belongs  to  it  in 
common  speech ;  and  the  lexical  definition  of  the  word,  along  with  other 
meanings,  is,  ''free  from  any  service,  charge,  burden,  tax,  duty,"  and  so 
forth;  "not  liable  to."  If,  then,  it  were  meant  to  release  or  discharge 
from  service  a  soldier  who  is  already  in  service,  it  would  be  not  only  an 
intelligible,  but  a  correct,  expression,  to  say  that  he  should  hereafter  be 
"exempt"  from  duty ;  that  is  to  say,  free  from  duty  or  service. 

If  Congress  had  meant  that  the  act  to  which  we  have  referred  should 


extend  to  men  in  actual  service  alone,  they  might  perhaps,  and  probably 
would  have  used  the  word  "discharged,"  instead  of  "•exempt."  If, 
however,  they  intended  that  the  law  should  embract^  not  only  persons  in 
service,  but  others  not  enrolled,  the  word  "discharged"  from  service 
would  have  been  inapplicable ;  nor  does  it  occur  to  rac  that  they  could 
have  so  well  expressed  their  meaning,  in  such  a  case,  by  any  other  word 
as  by  the  word  "exempt,"  without  a  periphrasis. 

It  is  further  said,  that  to  construe  the  exemption  act  as  applicable  to 
soldiers  who  were  in  service  at  the  time  when  their  contracts  were  made, 
would  be  to  give  it  a  retrospective  operation ;  which  is  inadmissible,  be- 
cause retrospective  laws,  if  not  unconstitutional,  are  odious ;  and  no  law 
is  to  be  so  construed  without  express  words  or  declaration  plain  of  the 
legislature  to  that  effect.  I  apprehend,  however,  that  the  proposition 
that  retrospective  laws  are  odious,  when  stated  without  qualification,  is 
untrue.     It  depends  on  circumstances  whether  they  are  odious  or  not. 

Retrospective  laws,  which  deprive  a  party,  against  or  without  his  con- 
sent, of  a  right  which  he  had  acquired  by  contract  or  otherwise,  under 
former  laws,  are  indeed  generally  unjust  as  well  as  odious;  but  those 
which  operate  uptm  the  remedy  merely,  or  which  do  not  take  away  or 
modify  any  vested  right,  against  the  will  of  the  party  interested,  are  not 
80 ;  and  no  presumption  whatever  is  to  be  made  against  them. 

In  the  case  before  the  court,  if  the  law  should  be  regarded  as  extend- 
ing to  persons  already  in  service,  those  persons  would  have  no  right  to 
e^omplain,  and  certainly  would  not  complain,  because  they  would  not  be 
obliged  to  become  contractors,  and  to  leave  the  service,  unless  they  should 
desire  to  do  so ;  and  the  government  would  have  a  perfect  right  to  pass 
a  law,  and  surrender  its  claim  to  the  services  of  such  persons,  if  it  chose 
to  do  so.  Whether  it  has  so  chosen  or  not,  we  must  ascertain  from  the 
language  of  the  law,  construing  it  upon  the  same  principles  as  any  oth<^r 
law. 

But  how  is  the  law  in  question  retrospective,  if  it  be  applicable  to  men 
already  in  service  ? 

Why,  only  in  this,  that  it  in  that  case  releases  men  from  an  obligation 
they  were  under  before  the  passage  of  the  law,  or  before  their  contracts 
were  made.  In  this  sense  it  is  retrospective,  whether  it  be  construed  to 
embrace  men  in  service  or  not. 

We  are  obliged  by  its  plain  letter  to  extend  it  to  men  not  enrolled,  who 
were  previously  liable  to  enrolment.  We  are  compelled  to  admit  that 
such  persons  may  exonerate  themselves,  by  contracting  to  carry  the  mail, 
from  their  previous  obligation  to  perform  military  duty  ;  and,  therefore, 
we  cannot  possibly  avoid  giving  to  it  a  retrospective  operation,  in  the 
sense  in  which  that  word  was  used  in  the  argument  of  this  case. 

Again:  Suppose  the  President  were,  by  and  with  the  advice  and  con- 
sent of  the  Senate,  to  appoint  a  soldier  to  a  judicial  office,  or  to  a  secre- 
taryship of  state  or  of  war :  is  there  any  doubt  that  he  would  ipso  facto 


be  discharged  from  service  as  a  soldier?  We  understood  the  very  learned 
and  able  counsel  who  argued  the  case  against  the  petitioner,  to  concede 
that  he  would  be ;  and  if  so,  it  must  be  because  former  exemption  acts 
declare  that  judges  and  other  officers  are  exempted  from  service  in  the 
armies  of  the  Confederate  States.  Then,  we  must  give  to  these  acts  the 
same  sort  of  retrospective  operation  which  would  be  given  to  the  act  of 
April  1863,  if  the  construction  for  which  the  petitioner  contend)*  be 
correct. 

There  can  be  no  doubt  that  if  a  soldier  in  actual  service  can  make  a 
valid  contract  to  carry  the  mail,  he  must  be  thereafter  exempt  from  mili- 
tary service,  under  the  act  of  the  14th  April  1863. 

Vdu  isuch  a  soldier  make  such  a  contract  ? 

There  is  nothing  in  the  act  just  mentioned,  or  in  any  other  act  ol 
congress,  to  prohibit  him  from  doing  so. 

It  is  said  to  be  incredible  that  Congress  should  grant  the  great  boon  ol 
exemption  from  military  service  to  a  soldier  in  the  army,  because  he  may 
be  a  contractor  to  carry  the  mail,  or,  perchance,  merely  the  driver  of  a 
mail  coach ;  yet  Congress  has  granted,  beyond  all  controversy,  that  very 
boon,  for  that  very  consideration,  to  persons  liable  to  military  service, 
before  enrolment. 

If  a  man,  however  young,  and  vigorous,  and  active,  and  healthy, 
should,  before  he  is  actually  enrolled,  make  a  contract  to  carry  the  mail, 
it  is  admitted  that  he  is  thereafter  exempt  from  military  duty. 

He  might  be  better  fitted  to  perform  the  duties  of  a  soldier  than  ao} 
man  in  the  Confederate  army.  He  might  be  a  veteran,  distinguislied  for 
hie  valor  on  many  a  battle  field ;  and  yet,  if  he  should  choose  U»  make  a 
contract  for  carrying  the  mail,  for  a  cent  a  year,  he  would  be  exempt  from 
military  service. 

What  great  difi'erence  can  it  make,  so  far  as  the  value  of  his  services 
to  the  Confederacy  is  concerned,  whether  he  enters  into  the  contract  the 
moment  before  he  is  enrolled,  or  the  moment  after  ? 

But  it  is  said  that  a  soldier  cannot  be  discharged  from  the  army  with 
out  certain  forms  and  ceremonies. 

That  rule,  however,  is  applicable  only  to  cases  where  the  party  is  re- 
quired by  law  to  remain  in  service  u7itU  he  is  so  discharged — not  to  any 
case  in  which  a  party  is  unlawfully  held  in  service. 

It  is  the  practice  of  every  day  to  discharge  minors,  without  requiring 
them  to  obtain  regular  discharges  from  their  officers.  The  same  course 
may  be  pursued  with  reference  to  men  beyond  the  military  age. 

In  such  cases,  the  court  simply  declares  the  party  who  may  be  con- 
fined, to  be  at  liberty  to  go  where  he  pleases,  and  imprisons  for  contempt 
the  party  disregarding  the  order. 

For  the  reasons  stated,  I  am  of  opinion  that  the  petitioner  is  exempt. 
from  military  service :  and  it  is  accordingly  ordered  that  he  be  released 
from  custody. 


John  H.  Leftwich     ) 

V.  >  Habeas  Corpus. 

Major  T.  G.  Peyton.  \ 


The  petitioner  prays  to  be  dischargecl  from  custody,  because  he  is  a 
contractor  to  carry  the  raail  of  the  Confederate  States  from  Monticello 
t4>  Macon,  in  Georgia — a  distance  of  forty-five  miles. 

His  contract  was  made  on  the  27th  day  of  May  1864,  since  the  passage 
of  the  act  of  1864,  entitled  ''An  act  to  organize  forces  to  serve  during 
the  war,"  and  he  is  between  eighteen  and  forty-five  years  of  age. 

The  question  to  be  decided  is,  whether  a  person  who  has  entered  into 
a  contract  to  carry  the  mail,  since  tlie  passage  of  the  act  aforesaid,  is 
exempted  or  not  from  service  in  the  army,  under  the  act  of  April  14th, 
1863,  entitled  "  An  act  to  exempt  contractors  for  cariying  the  mails  of 
the  Confederate  States,  and  the  drivers  of  post  coaches  and  hacks,  from 
military  service,^'  taken  in  connection  with  the  6th  clause  of  the  10th  sec- 
tion of  the  act  of  1864  aforesaid. 

A  very  similar  question  arose  and  was  decided  by  me  in  Lane's  case. 
The  reasons  for  the  decision  in  that  case  were  given  in  my  opinion  then 
pronounced,  and  I  do  not  mean  to  repeat  them  here,  or  to  add  mnch  to 
them. 

The  case  now  before  me  was  argued  with  much  learning,  research  Jind 
ahility,  and  T  listened  to  the  argument  with  pleasure  and  attention.  It 
t!:d  not,  however,  convince  me  that  the  decision  in  the  case  of  Lane  was 
wrong ;  and  still  less  did  it  tend  to  satisfy  me  that  the  prisoner  in  this 
case  ought  to  be  remanded. 

Without  instituting  a  critical  enquiry  into  the  various  significations  of 
the  word  "  exempt,"  and  taking  the  term  in  the  sense  in  which  it  is  com- 
monly understood,  by  the  learned  and  the  unlearned,  in  books  and  in  or- 
dinary discourse,  in  the  halls  of  legislation  and  elsewhere,  it  may  safely 
be  assumed,  that  when  Congress  declares  that  mail  contractors  shall  be 
•'  exempt  from  the  performance  of  military  duty"  it  cannot  mean  lesfi 
than  this,  that  such  contractors  shall  be  free  from  the  performance  of 
such  duty;  shall  not  be  liable  to  it;  shall  not  be  required  to  perform  it. 

It  is  true,  that  if  it  could  be  shown  that  Congress  did  not  mean  what, 
as  it  seems  to  me,  it  has  plainly  said,  the  court  would  be  guided  by  the 
intention  of  Congress,  and  not  by  the  language  of  the  act ;  but,  in  that 
case,  it  would  be  necessary  to  demonstrate  that  intention  clearly,  and 


beyond  all  reasonable  doubt.     That,  I  think,  has  not  been  done  in  this 
case. 

Reference  was  made  to  several  acts  of  Congress,  to  prove  that  the  trrrn 
**  exempted"  or  "■  exempt"  is  never  nsed  where  Congress  intended  t«>  - .  t 
free  from  service  those  who  are  actually  in  it :  that,  in  such  cases  the  vtrd 
"discharged"  is  always  adopted. 

The  most  cursory  examination  of  the  acts  cited  will  show  that  this  .•-  u 
mistake. 

The  first  exemption  act  (the  act  of  the  21  st  of  April  1862,  entithd 
^*An  act  to  exempt  certain  persons  from  enrolment  for  service  in  Jhe 
armies  of  the  Confederate  States")  provides  that  "all  persons  carrviiig 
the  mails,  all  ferrymen  on  post  routes,"  and  a  number  of  other  classfH  of 
persons  therein  mentioned,  shall  be  "  exempted  from  military  servico  in 
the  armies  of  the  Confederate  States."  There  is  no  room  for  doulft, 
then,  that,  under  that  act,  mail  carriers,  who  had  become  such  hefurr 
their  enrolment,  were  not  liable  to  enrolment,  or  to  military  service  after 
its  passage.  Yet,  the  conscription  act  of  1862  authorized  the  President 
to  call  out  and  place  in  service  all  white  men  who  were  residents  of  ihe 
Confederate  States,  between  the  ages  of  eighteen  and  thirty-five,  and 
those  persons  were  as  truly  in  service  after  the  call  of  the  President,  and 
before  their  enrolment,  as  they  were  afterwards,  and  when  thv»y  w*  r\i 
actually  serving  in  the  field. 

They  were  "exempted,"  'however,  in  the  language  of  the  exemptiuu 
iict,  "from  military  service  in  the  armies  of  the  Confederate  States," 
though  they  may  have  been  iu  it  when  put  upon  t\\e.  list  of  conscripts  by 
the  enrolling  ofl5cer. 

Again:  The  exemption  act  of  the  11th  of  October  1862,  provides, 
"  that  all  persons  who  shall  be  held  unfit  for  military  service  in  the  field, 
by  reason  of  bodily  or  mental  incapacity  or  imbecility,  under  rules  to  be. 
prescribed  by  the  Secretary  of  War,  are  hereby  exempted  from  military 
service."  How  can  there  be  a  doubt  that  persons  who  were  at  that  mo 
ment  serving  in  th^  army,  were,  under  that  act,  entitled  to  exemption 
from  the  time  when  they  should  be  held  to  be  unfit  for  military  servicH 
in  the  field  ? 

The  conscription  act,  approved  on  the  17th  of  February  1864,  places 
in  the  service,  from  its  passage,  all  white  men,  residents  of  the  Confede- 
rate States,  between  the  ages  of  seventeen  and  fifty. 

That  act,  therefore,  places  forthwith  in  military  service  all  State  and 
Confederate  judges,  and  all  other  State  and  Confederate  officers,  who  may 
be  between  the  ages  of  seventeen  and  fifty  years,  except  "the  Vice-Pre- 
sident of  the  Confederate  States,  the  members  and  officers  of  Congress 
and  of  the  several  State  Legislatures,  and  such  other  Confederate  and 
State  officers  as  the  President  or  the  Governors  of  the  respective  States 
may  certify  to  be  necessary  for  the  proper  administration  of  the  Confede- 
rate or  State  governments,  as  the  case  may  be;"  all  of  whom  are  ex- 


8 

••.n)f)ted  by  the  second  clauee  of  the  tenth  section  of  this  act.  Now,  a& 
^ho  claflses  of  State  oflScers  and  Confederate  oflScers  not  named  were 
jflacod  in  service  by  the  act,  and  were  lawfully  in  service  until  the  certi- 
ficate of  the  President  or  the  Governor  of  a  State  could  be  obtained,  it  is 
plain  that  the  terra  "  exempted"  is  here  applied  to  persons  who  at  the 
tiin»?  wore  in  the  military  service. 

It  was  insisted,  however,  that  if  Congress  had  meant  to  take  persona 
out  of  the  service,  who  were  already  in  it,  they  would  have  provided  for 
the  discharge  of  such  persons,  as  well  as  for  their  exemption.  They 
have  not  done  so,  however,  in  the  ca?oa  already  mentioned,  and  in  a  vast 
number  of  analogous  cases. 

Congrcf^s  must  have  foreseen  that  many  exempted  persons,  who  ought 
not  to  have  been  enrolled,  would,  nevertheless,  probably  be  enrolled, 
either  by  accident,  or  carelessness,  or  design,  and  they  must  have  intended 
that,  iu  those  cases  at  least,  the  enrolled  persons  should  be  discharged 
from  service.  Yet  they  have  made  no  provision  for  such  cases,  because, 
in  legal  contemplation,  a  discharge  is  the  necessary  consequence  of  an 
exemption  :  and  if  the  military  tribunals  do  not  discharge  them  when 
their  right  to  an  exemption  and  discharge  has  been  discovered,  they  may- 
be discharged  by  habeas  corpus.  So  all  persons  who  are  over  the  mili- 
tary age,  or  under  that  age,  who  may  be,  unwittingly  or  otherwise,  en- 
rolled and  placed  in  service,  are  entitled  to  an  immediate  discharge;  yet 
there  is  no  legal  provision  on  the  subject. 

Why  Congress  have  not  chosen  to  provide  for  the  discharge  of  these 
persons,  as  well  as  for  the  discharge  of  persons  elected  to  any  of  the 
offices  mentiont^d  In  the  act  of  April  2d,  1863,  entitled  "  An  act  to  autho^ 
rize  the  discharge  of  certain  civil  officers  from  the  military  service  of  the 
Confederate  States. '"  3  do  not  know.  All  T  know  is,  that  they  have  not 
chosen  to  do  so. 

Tt  was  said,  also,  that  the  policy  of  Congress,  declared  upon  the  face 
of  the  conscription  aet,  wap  to  keep  the  army,  then  existing,  in  the  ser- 
vice, and  that  it  is  iK>t,  therefore,  to  be  presumed  that  they  would,  in  a 
short  time  afterwards,  have  taken  out  of  the  service  any  who  were  at  that 
time  in  it;  but  the  very  act  which  sets  out  with  that  declaratiim,  also 
declares  that  after  the  expiration  of  ninety  days,  all  who  are  in  service, 
under  the  age  of  eighteen,  may  leave  it;  or  at  least,  shall  not  be  com- 
pelled to  remain. 

If  it  be  the  policy  of  our  government  to  inorease  the  number  of  soldiers 
in  our  army,  it  is  also  its  policy  to  increase  the  number  of  bidders  for 
contracts  to  carry  the  mail. 

At  one  time  the  act  to  exempt  mail  contractors  was  repealed;  but 
afterwards,  as  we  know,  the  Postmaster  General  stated,  in  a  communi- 
cation to  the  President,  the  great  difficulty  he  found  in  obtaining  contracts 
to  carry  the  mail,  and  Congress  afterwards  passed  the  act  of  April  14th, 
1863,  exempting  mail  contKactors  from  military  service.     It  is  not,  then, 


9 

reasonable,  as  it  seems  to  ine,  to  snppose  that  Congress  meant  to  exclude 
as  bidders  for  these  contracts  all  persons  fit  for  the  army,  between  the 
ages  of  18  and  45 ;  and  still  less  reasonable  would  it  be  to  presume  that 
they  meaflt,  by  the  act  of  17th  February  1864  (which  continues  in  force 
the  exemption  act  of  1863,  in  relation  to  mail  contractors),  to  exclude 
from  the  class  of  bidders  all  between  seventeen  and  fifty  years  of  age. 

The  argumentum,  ah  inconvenien/i  was  pressed  upon  the  court,  and  it 
was  said  that  the  mischief  would  be  incalculable,  if  every  blacksmith,  and 
shoemaker,  and  mechanic  of  every  kind,  were  allowed  to  leave  the  array. 

I  do  not  perceive,  however,  that  the  principle  upon  which  Lane's  case 
was  decided  couM  lead  to  this  consequence. 

From  the  time  when  a  man  is  put  in  the  army  he  cannot  well  be  "  en- 
gaged habitually"  in  any  mechanical  employment,  "  working  for  the 
public."  He  has  no  right  to  leave  the  army,  or  neglect  his  duties  as  a 
soldier  for  that  purpose;  and,  if  he  were  to  do  so,  could  found  no  right  to 
exemption  upon  his  wrongful  act.  The  government  has  a  right  to  his 
services  for  every  moment  of  his  time  after  he  has  entered  the  army,  and 
we  cannot  suppose  that  the  case  of  a  man  acquiring  a  trade  or  resuming 
his  employment  as  a  mechanic,  after  being  placed  in  military  service,  was 
in  the  contemplation  of  Congn^ss.  For  this,  and  other  reasons  which 
might  be  given,  I  think  that  the  Supreme  Court  of  North  Carolina  wa>j 
right,  in  the  case  cited  and  relied  upon  by  the  counsel  for  the  enrolling 
oflScer,  or  for  Major  Peyton,  in  this  case,  in  saying  that  no  person  is 
"embraced  by  the  provisions  of  the  exemption  act  of  April  1862,  so 
as  to  be  entitled  to  exemption  as  a  shoemaker,  tanner,  &c.,  who  was,  at 
the  date  of  its  passage,  in  the  army  as  a  soldier — that  is,  who  had  been 
placed  in  the  militaiy  service  of  the  Confederate  States  in  the  field;" 
and  I  have  heretofore,  if  I  remember,  decided  the  same  point  in  the  same 
way,  and  gone  further  than  the  court  did  in  that  case. 

The  case  of  the  mail  contractor,  however,  in  my  view,  is  widely  differ- 
ent from  that  of  the  mechanic. 

An  officer  or  soldier  in  the  army  ha«  n  perfect  right  to  make  a  mail 
contract.  He  would  have  had  that  right  if  the  exemption  act  had  never 
existed,  and  would  continue  to  have  it  if  the  act  were  struck  out  of  ex- 
istence to-morrow.  If  he  were  to  make  such  a  contract,  he  would  be 
bound  by  it,  and  might  cause  it  to  be  executed— that  is  to  say,  might 
fulfill  it  perfectly,  through  the  agency  of  others ;  though  he  would  not  be 
likely  to  undertake  it,  unless  for  a  most  extravagant  and  unreasonable 
compensation.  It  would  not  be  at  all  incompatible,  or  inconsistent,  in  a 
legal  point  of  view,  with  his  duties  as  an  oflScer  or  a  soldier,  for  him  to  do 
80 ;  and  the  moment  he  made  the  contract,  he  would  become  one  of  the 
class  to  which  the  exemption  law  is  applicable.  His  exemption  would 
not  be  founded  upon  an  unlawful  act.  He  would  become  exempt  in  con- 
sequence of  having  done  that  which  he  had  aclear  right  to  do,  and  which 
Congress  has  declared  shall  exempt  him. 


That  the  Chief  Justice  of  the  Snpreme  Court  of  North  Carolina  did 
not  think  then;  was  any  inconsistency  between  the  principle  decided  in 
Guyer's  case,  in  which  he  delivered  the  opinion  of  the  court,  and  the 
case  of  Lane,  delivered  by  me,  is  manifest  from  the  opinion  delivered  by 
him  in  the  case  of  liradshaw,  in  February  1864. 

What  puri)(>rts  to  be  a  complete  copy  of  that  opinion,  in  a  North  Caro- 
lina newspaper,  is  before  me,  and  from  it,  it  appears  that  Bradshaw  was 
a  constable  in  April  1863,  and  was  enrolled  and  sent  to  a  camp  of  in- 
struction :  that  in  May  1863  Congress  passed  an  act  declaring  that  "in 
addition  to  the  state  oflScers  exempted  by  the  act  of  the  1st  October  1862, 
there  shall  be  exempted  all  State  officers  whom  the  Governor  of  any  State 
may  claim  to  have  exempted  for  the  due  administration  of  the  govern- 
ment and  the  law  s  thereof,"  &c. ;  and  that  Governor  Vance,  on  the  9th 
of  May  1863,  claimed  to  have  exempted  "constables  who  had  entered 
into  bond  previous  to  the  11th  May  1863."  Upon  this  state  of  facts,  the 
Chief  Justice  decided  that  the  constable,  though  he  had  been  rightly  held 
in  service  up  to  that  time,  was  exempt  from  that  time. 

He  says;  'I  can  see  no  ground  to  except  from  the  operation  of  the 
statute  State  officers  who*  were  in  the  military  service.  If  such  was  the 
intenti<m,  a  proviso  to  that  effect  would  have  been  made ;  and  there  is 
no  rule  of  law  under  which  it  can  be  made  by  construction.  I  am,  there- 
fore, of  opinion  that  the  petitioner  is  exempted. 

'•  It  was  said  in  the  argument,  that  the  exemption  should  be  made  by 
implication,  from  the  use  of  the  words  'shall  be  exempted;'  and  it  was 
said  that  the  word  'exempted'  is  restricted  in  its  meaning  to  persons  who 
are  not  in  the  military  service;  and  'discharged'  is  the  proper  word 
when  referring  to  persons  who  are  in  the  military  service.  This  distinc- 
tion may  obtain  in  military  circles ;  but  the  word  *  to  exempt'  is  not  a 
technical  term — it  is  a  plain  English  word,  and  means  literally  'to  take 
out  or  from ;'  and  its  ordinary  signification  is  '  to  free  from,  and  not  be 
subject  to'  any  service  or  burden  to  which  others  are  made  liable :  as,  to 
exempt  from  military  service ;  to  exempt  from  taxation  ;  and  it  is  a  set- 
tled rule  of  I'onstruction,  that  words  in  a  statute  are  to  be  construed 
according  to  their  ordinary  meaning,  unless  there  is  something  to  show 
?they  are  used  in  a  different  sense.  The  court  cannot  expect  Congress  to 
take  notice  of  the  military  parlance,  and  require,  in  order  to  express  the 
intention,  that  all  the  State  officers  whom  the  Governor  may  claim  as 
necessary,  &c.,  shall  be  free  from  military  service,  that  this  particular 
mode  of  expression  shall  be  adopted,  to  wit :  '  All  State  officers  not  in 
the  military  service  shall  be  exempted,  and  all  who  are  in  the  military 
service  sliall  be  discharged^  whom  the  Governor  may  claim  as  necessary, 
&c.'  The  meaning,  as  expressed  by  the  act  of  Congress,  to  exempt  all 
State  officers,  is  clear,  and  the  words  used  to  express  the  intention  are 
appropriate,  according  to  their  well  known  interpretation." 

Afterwards  he  says :    "My  conclusion  is  also  supported  by  the  decision 


11 

of  Judge  Halybnrton,  of  the  District  Court  of  the  Confederiifce  States,  in 
the  matter  of  Lane,  where  it  was  held,  that  a  soldier  who  became  a  mail 
contractor  is  embraced  by  the  act  of  14th  of  April  18(>3,  and  is  exempted 
from  military  service;  and  by  the  decision  of  Judge  Meredith,  in  the 
matter  of  Bunting,  which  I  noticed  briefly  referred  to  in  a  newspaper, 
where  it  is  held,  that  a  soldier,  who,  while  in  the  service,  was  elected  a 
justice  of  the  peace,  and  regularly  qualified  a;?  such,  is  exempted." 

It  may  be  worthy  of  note  that  the  first  exemption  act  t>f  April  21  st. 
1862,  is  entitled  "An  act  to  exempt  certain  persons  from  enrolment  for 
service  in  the  armies  of  the  Confederate  States ;"  while  the  act  of  14th 
April  1863  is  entitled  "An  act  to  exempt  contractors  for  carrying  the 
mails  of  the  Confederate  States,  and  the  drivers  of  post  coaches  an<l 
hacks,  from  military  service.''* 

I  am  still  of  opinion  that  the  case  of  Lane  was  rightly  decided ;  but 
the  case  at  bar  stands  upon  a  footing  materially  different  from  that  of 
Lane. 

The  sixth  clause  of  the  tentli  section  of  the  act  of  the  17th  of  February 
1864,  entitled  "An  act  to  organize  forces  to  serve  during  tho  war,"  pro 
vides  that  nothing  contained  in  that  act  "shall  be  construed  as  repealing 
the  act  approved  April  14th,  1863,  entitled  'An  act  to  exempt  contractors 
for  carrying  the  mails  of  the  Confederate  Stattrf,  a«d  the  drivers  of  post 
coaches  and  hacks,  from  military  service :  provided,  that  the  exemptions 
granted  under  this  act  shall  only  continue  whilst  tlie  persons  exempted 
are  actually  engaged  in  their  respective  pursuits  or  occupations.' " 

When  this  act  of  1864  was  passed,  the  case  of  Lane,  and  many  other 
cases  to  the  same  ejffect,  had  been  decided  by  me,  establishing  the  prin 
ciple,  so  far  as  decisions  of  this  court  could  do  so,  that  persons  who  were  in 
the  military  service  of  the  Confederacy  became  ex(Mnpt  from  that  service 
upon  entering  into  contract  for  carrying  the  mail,  and  were  consequently 
entitled  forthwith  to  a  discharge.  Several  cases  in  the  Circuit  Court  of 
this  city,  and  some,  I  believe,  in  other  courts  of  this  State,  w<ro  decided 
in  the  same  way. 

It  is  to  be  presumed,  and  indeed  can  hardly  be  doubted,  that  Congress 
knew  that  the  courts  had  so  decided. 

The  President  had  called  upon  the  Secretary  of  War  for  information 
as  to  the  course  pursued  by  the  Department  of  War  in  relation  to  mail 
contractors.  What  the  courts  had  decided,  as  well  as  wh;it  the  War 
Department  had  done,  was  stated  by  the  Secretary  to  the  President,  and 
was  probably  made  known  by  him  to  Congress,  in  answer  to  a  resolution 
of  enquiry,  which  had  been  passed  by  that  body. 

Under  these  circumstances,  I  regard  the  action  of  Congress  as  ratify- 
ing the  construction  which,  up  to  that  time,  had  been  placed  on  the 
exemption  act  by  all  the  courts  of  Virginia  which  had  spoken  on  the  sub- 
ject, and  was  not  opposed  by  the  decision  of  any  court  elsewhere  that  1 
have  heard  of.     If  there  had  been  any  such  decision,  it  would  no  doubt 


12 

have  been  produced  by  the  learned  counsel  who  argned  this 
elaborately  and  so  well  against  the  prisoner. 

The  current  of  judicial  decisions  upon  this  subject  appears  to  have 
been,  at  that  time,  uniform  and  unbroken. 

If  the  constructioi!  given,  as  above  mentioned,  to  the  exemption  act, 
and  r.nder  wliich  a  considerable  number  of  persons  had  been  discharged 
from  service  in  the  armies  of  the  Confederacy,  had  been  contrary  to  the 
intention  of  Congress  in  passing  the  act ;  or,  at  least,  if  the  Congress 
which  passed  the  act  of  1864  had  not  designed  to  allow  the  intrepretation 
whicli  had  been  given  by  the  courts  to  this  act  to  stand  without  change, 
it  is  very  difficult,  if  not  impossible,  to  believe  that  they  would  have 
expressly  continued  in  force  the  act  of  1863,  without  any  alteration  what- 
ever. 

Congress  had  no  reason  for  presuming  that  the  courts  would  reverse  a 
nettled  course  of  decision,  or  for  doubting  that  men  would  be  discharged 
after  the  passage  of  the  act  of  1864,  as  they  had  been  discharged  before. 

If  this  action  of  the  courts  had  been  disapproved  by  them,  they  would 
probably  ha\  (^  manifested  their  disapprobation  by  changing  the  language 
of  the  law. 

Two  decisions  entitled  to  great  respect — one  by  the  Court  of  Appeals 
of  this  State,  and  the  other  by  the  Circuit  Court  at  Petersburg — were 
cited  as  adverse  to  my  decision  in  the  case  of  Lane ;  but  as  these  de- 
cisions were  subse(juent  to  the  conscription  act  of  1864,  they  were  not 
known  to  Congress  at  the  time  of  its  enactment  of  that  law,  and  could 
not,  of  course,  have  had  any  influence  upon  it. 

A  letter  was  read  at  the  bar,  from  the  Secretary  of  War  to  the  Presi- 
dent, in  which  th<;  Secretary  states  that  the  War  Department  did  not 
regard  mail  contractors,  who  had  made  contracts  after  their  enrolment, 
as  entitled  to  a  discharge  from  the  army ;  and,  therefore,  they  were  not 
discharged,  except  under  a  writ  of  habeas  corpus ;  stating,  at  the  same 
time,  that  ohedienr.e  was  always  paid  to  the  writ,  and  the  party  who  ob- 
tained it  discharged,  when  it  was  so  ordered  by  the  courts. 

Whether  this  letter  was  ever  submitted  to  Congress,  or  not,  I  do  not 
know  ;  but,  if  it  were,  we  certainly  cannot  infer  from  that  fact  that  Con- 
gress intended  to  arrest,  or  to  justify  any  interference  with,  the  action  of 
the  courts,  by  their  omission  to  change  the  phraseology  of  the  law. 

We  have  already  seen  that  Congress  has  not  thought  fit  to  order  the 
discharge  of  exempt  persons,  in  many  cases  where  they  are  clearly  enti- 
tled to  it,  but  has  left  them  to  their  remedy  by  habeas  corpus,  if  the 
army  officers  will  not  voluntarily  discharge  them. 

So  with  reference  to  mail  contractors.  Congress  may  have  thought  it 
best  to  leave  their  cases  to  be  disposed  of,  as  they  have  been  heretofore, 
and  to  be  investigated  and  decided  by  the  courts,  when  the  officers  of  the 
army  shall  not  think  it  proper  to  discharge  them,  either  because  the  con- 
tract may  not  have  been  proved,  or  for  some  other  reason. 


13 

in  addition  to  what  has  been  said,  it  is  certainly  a  consideration  en- 
titled to  much  weight,  that  many  individuals  may  have  entered  into  con- 
tracts for  carrying  the  mails  for  a  small,  or  merely  nominal  pecuniary 
compensation,  believing  that  they  would  thereby  be  exempt  from  military 
duty,  and  induced  to  believe  so  by  the  decisions  of  the  courts  to  which 
reference  has  been  made. 

Those  persons  are  now  bound  by  their  contracts,  and  cannot  escap*' 
from  the  obligation. 

Their  case  would  b(;  one  of  nmch  hardship,  if  they  were  now  compelled 
to  perform  their  contracts,  and  the  whole  consideration  for  which  they 
undertook  to  perform  them  taken  away. 

Many  <»f  them  might,  in  this  way,  be  subject  to  ruinous  losses ;  be- 
cause they  might  be  absolutely  unable  to  comply  with  their  contracts, 
without  giving  to  them  their  personal  attention,  and  thus  obliged  to  pay 
the  penalty  for  nonperformance',  without  receiving  any  remuneration 
whatever. 

If  the  law  be  clear  against  them,  thi&  consideration  could,  of  course, 
have  110  weight ;  but  it  would  not  be  right  for  the  courts,  unless  the  point 
be  clear,  to  bring  about  such  a  result,  by  reversing  a  series  of  decisions, 
any  more  than  it  would  be  right  to  shake  titles  to  lands,  by  departing' 
trom  a  settled  course  of  decisions,  upon  grounds  not  entirely  satisfactory. 

One  of  the  counsel  who  argued  this  case  against  the  petitioner,  re- 
marked, if  I  understood  him  correctly,  that  he  found  it  difficult  to  con- 
ceive how  a  man  who  had  once  entered  the  military  service  of  the  country, 
could  ever  get  out  of  it  without  a  regular  and  formal  discharge  by  some 
military  officer,  as  directed  by  the  articles  of  war. 

But  there  is  no  magic  in  the  fact  that  a  man  is  in  military  service. 
No  charmed  circle  is  thereby  drawn  around  him,  which  no  civil  court  <.i 
civil  officer  can  approach. 

No  court  has  ever  refused,  so  far  as  I  am  informed,  to  discharge  a  per- 
son brought  up  under  a  writ  of  habeas  corpus,  and  who  could  show  that, 
by  reason  of  infancy  or  old  age,  or  any  other  ground  of  exemption,  he 
was  illegally  detained  in  service,  upon  the  ground  that  the  military 
authorities  alone  could  discharge  him.  The  moment  it  is  shown  that  a 
person  is  entitle<i  to  exemption,  and  is  illegally  detained  in  service,  whe- 
ther he  was  put  in  it  lawfully  at  first,  or  unlawfully,  he  has  a  right  to  be 
discharged,  under  the  great  remedial  writ  of  habeas  corpus.  The  ques- 
tion in  these  cases  is  not  how  a  person  got  into  the  service,  but  whether 
he  is  legally  detained  there  or  not. 

He  may  have  enlisted  voluntarily,  for  a  certain  and  limited  time,  or  he 
may  have  rightly  been  placed  there  for  a  definite  period ;  but  in  either 
case,  when  the  time  for  which  he  is  bound  to  serve  has  expired,  if  he  be 
ptill  retained  in  the  service  against  his  will,  he  may  be  discharged,  under 
the  writ  of  habeas  corpus,  by  the  courts,  if  th<5  military  authorities  will 
not  discharge  him. 


14 

So,  if  after  he  has  entered  the  army,  an  act  of  OongrHga  be  passed 
declaring  that  he  shall  be  exempt  from  service,  and  no  longer  be  held 
thern,  the  courts  may  discharge  him. 

I  am  of  opinion  that,  in  this  case,  the  prisoner  is  entitled  to  relief,  and 
he  will  be  discharged  accordingly. 


Hollinger  Corp. 
pH8.5 


